A.B. Pal, J.
1. I have heard Mr. R. Datta, learned Counsel for the petitioner and Mr. Somik Deb, learned Counsel for the respondent.
2. The judgment dated 5-10-2005 passed by learned Sessions Judge, South Tripura, Udaipur in Criminal Revision No. 28(4)/2004 stands impugned in the present revision petition.
3. By the said judgment of the learned Sessions Judge the order dated 24-8-2004 passed by learned Sub-Divisional Judicial Magistrate (for short SDJM), Sabroom, South Tripura in C.R. Misc. 7 of 2003 whereby his own order dated 17-7-2001 granting interim maintenance of Rs. 1500/-in a proceeding under Section 125 of the Criminal Procedure Code (for short 'Code') for the respondent-wife herein and her child was cancelled, has been set aside reviving thus the original interim order dated 17-7-2001 of the learned SDJM.
4. The material facts giving rise to the present controversy originates from a petition filed by the respondent-wife under Section 125 of the Code before the Court of SDJM which was registered as C.R. Misc. No. 6(A)/2001. In the said petition she claimed that she was married to the petitioner herein on 21-11-1997 as per Hindu rites and customs in the house of her father and thereafter they lived together in the house of the petitioner-husband. In due course a child was born from the wedlock, but the conjugal bliss did not last long as the respondent-wife herein was allegedly subjected to cruelty and harassment. On 4-6-2000 the petitioner and his relatives had driven her out after severely assaulting her, forcing her to take shelter in her parents house. As the petitioner-husband was negligent in taking care of her and the child by providing maintenance, she had to approach the Court of learned Sub-Divisional Judicial Magistrate with a prayer under Section 125 of the Code claiming Rs. 1500/- for herself and equal amount for her son. The opposite party petitioner herein resisted the claim denying the marriage but, at the same time taking a plea that as the respondent-wife had left his house wilfully and in his absence, she was not entitled to any maintenance. The said petition of maintenance was disposed of by the learned SDJM granting Rs. 900/- per month as maintenance for the respondent-wife and Rs. 600/- per month for her minor son after making following observations, which, being relevant, is quoted below :
The opposite party denied any marriage but inter alia he stated that the petitioner left his house voluntarily in his absence without any reason. I fail to understand if there is no relation between the petitioner and the opposite party then why the opposite party stated in his written objection that the petitioner left his house without anv reason and why the opposite party also allowed the petitioner to stay in his house in what status. The opposite party at the 'same time did not utter a single word in his written objection regarding birth of male child by the petitioner after their marriage with the opposite party.
So considering the above I am in my opinion that there is prima facie case and sufficient reason to allow interim maintenance in favour of the petitioner.
5. The above order of maintenance passed on 17-7-2001 was not put under challenge by the petitioner herein in any higher forum. It is not on record that he made any application in the same Court for modification of the order. It may be noted here that the respondent-wife filed another petition under Section 498-A of the Indian Penal Code (for short 'IPC') alleging cruelty perpetrated on her by the petitioner-husband herein and his relatives. The said offence was taken cognizance of after investigation and submission of charge-sheet and the case was finally heard by another criminal Court, the Judicial Magistrate 1st Class, Sabroom, South Tripura. The judgment in that case registered as G.R. 69/2000 was delivered on 22-11-2002, one year four months after the order of maintenance was passed by the learned SDJM. The said proceeding under Section 498-A however, ended in acquittal of the petitioner herein only on the ground that the marriage between the parties could not be strictly proved. Before arriving at this final decision recorded at para 12 of the said judgment, the said Court made several observations regarding marital status of the parties, which are to be noted for the purpose of adjudication of the issues raised herein. The relevant part at page 16 of the said judgment reads :
On careful perusal the evidence of P.W. No. 11 find that she got married to accused Biswanath Sarkar and their marriage took place in the house of her father at Sabroom on 21st November, 1997 AD and the said marriage was solemnized as per Hindu rites and customs.
Again, at page 18 the observation reads:
From the contents of Written Complaint, I have found that the informant (P.W. No. 1) married to Biswanath Sarkar on 21-11-1997 and the marriage ceremony was performed in the house of her father as per the Hindu rites and customs.
In para 9 of the judgment the finding recorded reads as follows :
From the above findings and discussion I found that no valid marriage as per Hindu customary rites and ceremonies was taken place between Swapna Dey (P.W. No. 1) and Biswanath Sarkar on 21-11-1997 in the house of Swapna's father.
At page 21 the observation again reads as follows :
Merely going through certain ceremonies with intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom.
The final decision on page 21 is quoted below:
Thus in my opinion it is clear that the prosecution could not establish the valid marriage between Swapna Dey and Biswanath Sarkar. So, it cannot be said that Biswanath is the husband and Swapna Dey by valid marriage. Accordingly, the other accused are also not relatives of the husband of Swapna Dey (informant). However, it is clear and supported with corroborative evidences that
the minor son born to Swapna Dey is of Biswanath Sarkar. So in regard to the said minor child. I hold my opinion that the minor male child was born due to the relation and living together of Biswanath Sarkar and Swapna
Dey.
(Emphasis given)
From the above observations in the judgment it would appear that the main thrust of the inquiry by that Court was on the question whether the marriage between the petitioner and the respondent was a valid Hindu marriage in strict sense. The important question of cruelty being most relevant which a criminal Court in a proceeding under Section 498-A, IPC is called upon to decide had taken back seat. A careful perusal of the said judgment would give the irresistible impression that the said criminal Court converted itself into a civil Court and entered into the question of validity of the marriage in details to find out whether the marriage was strictly proved Hindu marriage by performing essential rites. Though he has arrived at a definite and clear finding that the parties lived together as husband and wife in the same house and a son was born to them, and recorded statements of witnesses who have stated in no uncertain terms performance of certain ceremonies of the marriage they have witnessed. He remained unconvinced about validity of the marriage. The prima facie proof of conjugal relation In support of a marriage, thus brought on record, was ignored by the said Court in his search for strict proof without which he felt not free to decide the question of cruelty in the proceeding under Section 498-A. Accordingly, the accused petitioner was acquitted and set at liberty.
6. After his acquittal from the charge of cruelty in the proceeding under Section 498-A, IPC as aforesaid, the petitioner-husband approached the Court of learned SDJM aimed with copy of the judgment of acquittal contending that as the respondent wife had failed to prove the marriage between them was a valid marriage the order of maintenance was to be cancelled. Thus, the order of maintenance under Section 125 of the Code has taken up for reconsideration and after recording the rival submissions on the effect of the findings of the other criminal Court about validity of marriage on the order of maintenance and placing reliance on the decision of the Apex Court in Samir Mandal v. State of Bihar reported in : (2001)10SCC50 , it was finally held that in view of the findings of the learned Judicial Magistrate in the preceding under Section 498-A, IPC that validity of the marriage could not be proved, the interim order of maintenance was not sustainable in law and accordingly the same was cancelled.
7. Aggrieved, the respondent-wife filed Criminal Revision No. 28(4) 2004 before the learned Sessions Judge, South Tripura, Udaipur, who in the judgment impugned herein has elaborately dealt with the question whether findings of another criminal Court about marital status of persons in a proceeding under Section 498-A has the effect of deciding the fate of a proceeding under Section 125 of the Criminal Procedure Code. The decision of the Apex Court noted above, on which strong reliance was placed by learned Counsel for the petitioner-husband has been discussed before talcing the view that the said decision has no application in the case in hand. To appreciate the controversy on this issue, para 3 of the said Judgment in Samir Mandal (supra) is quoted below :
3. Mr. H.L. Agarwal, the learned Senior Counsel appearing for the appellant contended that the respondent Shibani had filed a criminal case under Section 494 of the Indian Penal Code and in that proceeding the Magistrate has recorded a finding that Shibani could not establish her marriage with Samir, and therefore if the marriage is not established the question of grant of maintenance under Section 125 does not arise. Mr. Mukherjee appearing for the respondent, on the other hand, submitted that in that proceeding a finding is recorded with regard to the alleged second marriage with Sachirani and therefore the order would not disentitle the respondent from getting maintenance under Section 125. We have examined the impugned judgment of the learned Sub Divisional Magistrate and we find that the Magistrate has categorically recorded a finding that Shibani has failed to establish her marriage with Samir as well as she has also failed to establish the alleged second marriage. At any rate, if the marriage between Shibani and Samir has not been established then the question of grant of maintenance under Section 125 would not arise. In the aforesaid circumstances, we allow this appeal and set aside the order of the Magistrate directing grant of maintenance.
8. The ratio of the above decision is that in a proceeding under Section 494, IPC a marriage has to be strictly, proved inasmuch as the said offence has been created to deal with marital relations. But the same standard of proof is not. necessary in a proceeding under Section 125 of the Code or a proceeding under Section 498-A, IPC. Considering the case from that angle learned Sessions Judge came to hold that the decision of a criminal Court regarding marital status of the parties in a proceeding under Section 498-A cannot be equated with a similar decision in a proceeding under Section 494, IPC. In Samir Mandal (supra) the decision of the criminal Court about marital status of parties in a proceeding under Section 494 determined the fate of a proceeding under Section 125 of the Code, but in the present case the issue is whether finding of a criminal Court about marital status of parties n a proceeding under Section 498-A, IPC can decide the fate of a proceeding under Section 125 of the Cede. The two situations being completely different the said Court held that the decision of the Apex Court noted above has no application in the present case. Accordingly the revision petition was allowed setting aside the Judgment and, order dated 24-8-2004 passed by learned SDJM restoring thereby the interim order of maintenance passed by the same Court on 17-7-2001.
9. There being no serious dispute regarding the factual position noted above the controversy in a short compass is whether the learned Sessions Judge has correctly held that decision about marital status of persons by a criminal Court in a proceeding under Section 498-A of the Code cannot have any bearing on a proceeding under Section 125 of the Code.
10. Mr. Somik Deb, learned Counsel for the respondent-wife has placed strong reliance on the several decisions of the Apex Court in order to bring home the point that the standard of proof of marriage in a proceeding under Section 125 of the Code is not same as is required in a proceeding under Section 494, CPC.
In Dwarika Prasad Satpathy v. Bidyut Prava Dixit reported in : 2000CriLJ1 , regarding the standard of proof required in a proceeding under Section 125 of the Code on which Mr. Deb has placed strong reliance, the Apex Court has made following observations in para 5 & 10 :
6. learned Counsel for the appellant at the time of hearing had not disputed the paternity of the child. Hence, the question is whether the marriage between the appellant and Respondent 1 was valid or invalid In our view, validity of the marriage for the purpose of summary proceedings under Section 125, Cr. P.C. Is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not a$ strict as is required in a trial of offence under Section 494, IPC. If the claimant in proceedings under Section 125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the Court can presume that they are legally wedded spouses, and in such a situation, the party who denies the marital status can rebut the presumption. Undisputedly, marriage procedure was followed in the temple, that too, in the presence of the idol of Lord Jagannath which is worshipped by both the parties. The appellant contended before the learned Magistrate that the
safe marriage was performed under duress and at the point of a knife, he was required to exchange garlands. Thai contention is not proved by leading necessary evidence. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu sites in the proceedings under Section 125, Cr. P.C.
10. After not disputing the paternity of the child and after accepting the fact that the marriage ceremony was performed, though not legally perfect as contended, it would hardly lie in the mouth of the appellant to contend in a proceeding under Section 125, Cr. P.C. that there was no valid marriage as essential rites were not performed at the time of the said marriage, The provision under Section 125 is not to be utilized for defeating the rights conferred by the legislature on the destitute women, children or parents who are victims of the social environment. In Ramesh Chander Kaushal v. Veena Kaushal 1979 Cri LJ 3, para 9. Krishna Iyer, J. dealing with the interpretation of Section 125, Cr. P.C. observed (at para 9) thus {SCC p. 74} :
9. This provision is a measure of social Justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance, So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause - the cause of the derelicts.
In Savitaben Somabhai Bhatiya v. State of Gujarat reported in : 2005CriLJ2141 , the Supreme Court reiterated the same legal position again by holding that the standard of proof of marriage in such a proceeding is not as strict as is required in a trial of offence under Section 494 of the Code. Para 13 of the said judgment is gainfully quoted below :
13. In Dwarika Prasad Satpathy v. Bidyut Prava Dixit 2000 Cri LJ 1, it was held that the validity of the marriage for the purpose of summary proceedings under Section 125 of the Code is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceedings is not as strict as is required in a trial of offence under Section 494 of the Indian Penal Code, 1860 (in short 'IPC'). If the claimant in proceedings under Section 125 succeeds in showing that she and the respondent have lived together as husband and wife, the Court has to presume that they are legally wedded spouses, and in such a situation one who denies the marital status can rebut the presumption.
11. Mr. Deb placed another argument with regard to the revisional jurisdiction of this Court placing reliance to a decision of Supreme Court in Pathumma v. Muhammed reported in : 1986CriLJ1070 , to the effect that when a Magistrate after considering evidence adduced by the parties held that appellant 1 was not the wife of the respondent, the High Court could not make re-assessment of the evidence. Para 6 of the said judgment containing the important observation is quoted below :
6. The questions whether appellant 1 was the married wife of the respondent and whether appellant 2 was the legitimate or illegitimate child of the. respondent, are preeminently questions of fact. The learned Magistrate after considering the evidence, as adduced by the parties, held that appellant 1 was not the wife of the respondent. He further held on the basis of the evidence on record that appellant 2 was the illegitimate child of the respondent. We are afraid, the learned Judge of the High Court committed an error in making a re-assessment of the evidence and coming to a finding that appellant 2 was not the illegitimate child of the respondent. We have ourselves considered the evidence on record and we agree with the learned Magistrate, who had taken much pains in analysing the evidence, that appellant 2 was the illegitimate child of the respondent.
There is no quarrel on the point that the revisional jurisdiction of the High Court does not extend to substituting its own view for that of the learned Magistrate on a question of fact. The question that has been adverted to in the present case is not related to fact at all. The moot question which has emerged for decision is whether an order of maintenance passed by a Court in a proceeding under Section 125 of the Code after satisfying itself about prima facie proof of a marriage can be cancelled later by the same Court pressing into service findings of a different criminal Court in a separate proceeding between the same parties under Section 498-A, IPC that there was no valid marriage as essential rites were not performed at the time of their marriage. In my considered view such a question is purely a question of law. The learned Sessions Judge in exercise of his revisional jurisdiction dealt with this question only and similarly in the present proceeding this Court is called upon to decide whether the learned Sessions Judge has correctly decided that question.
12. Situated thus, it may be noticed that the proceeding under Section 498-A before the learned Judicial Magistrate originated from a complaint lodged by the respondent-wife herein alleging that after her marriage, her husband, the petitioner herein, developed relation with another woman and the acrimony thus created broke down their conjugal relation which culminated in cruelty perpetrated on her by the husband and his relatives. Her complaint was investigated by police and after a prima facie case was established the petitioner-husband was charge-sheeted whereupon learned Magistrate took cognizance of an offence under Section 498-A, IPC. Section 498-A has been enacted in Chapter XXA of the Code in order to prevent husbands and relatives from treating with cruelty the women who are victims of social environment with a view to deal with heavy hand the social menace of atrocities against women which is an increasingly disturbing phenomenon. Section 498-A, IPC has been enacted to provide as follows :
498A. Husband or relatives of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purposes of this section, 'cruelty' means -
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet demand.
13. A plain reading of the above provision would go to show that the ingredients of the offence do not require the prosecution to strictly prove validity of a marriage in question inasmuch as in such a proceeding under Section 498-A the main focus is on the elements of' cruelty within the meaning of that Section which is alleged to have been perpetrated upon the women. This provision has nothing in common with the scope and objective of Section 494, IPC, where main focus is on a second marriage during lifetime of a spouse. Thus, ingredients of such an offence under Section 494 being purely related to incident of a second marriage required a stricter proof which is not the case in a proceeding under Section 498-A. If it is found that the parties were living together and a child was born out of their relation as in the present case, nothing more is required about their marital status in a proceeding under Section 498-A for the Court to decide the question of cruelty on her and whether an offence under Section 498-A has been committed. In my considered view the standard of proof as is required in a proceeding under Section 494 is not at all necessary in a proceeding under Section 498-A, the objects and ingredients of the two provisions being entirely different. Thus, only prima facie proof of marriage as is required in a proceeding under Section 125 of the Code would serve the purpose in a proceeding under Section 498-A and proceeding from such premises it has to be held that decision of a Court that there was no valid marriage because strict proof of performance of essential rites could not be proved in a proceeding under Section 498-A cannot have any
bearing on a proceeding under Section 125 of the Code. In the case on hand the learned Judicial Magistrate while dealing with a proceeding under Section 498-A has travelled beyond the scope of the provision and his jurisdiction by entering into the question whether the marriage between the petitioner and the respondent herein was performed strictly in accordance with Hindu rites and customs and while doing so he has, as a matter of fact, converted himself into a civil Court. Once the Magistrate has recorded his findings that the petitioner and the respondent went through certain marriage ceremonies, lived together under the same roof and from their relation a child was born, and thereafter proceeded to hold that the marriage was not legally valid for want of stricter proof, the learned SDJM in the proceeding under Section 127 of the Code, should not have been influenced or guided by such findings about marital status of the parties for recalling the order of maintenance. The learned Sessions Judge in the judgment impugned herein has correctly held that the learned SDJM has acted illegally by cancelling the order of maintenance only because a different finding was recorded by a different criminal Court in a different proceeding, instead of himself concluding the proceeding and deciding the case on the basis of the evidence and materials available on record.
14. For the discussions and the observations noted above, I am of the considered view that this Criminal Revision Petition being devoid of any merit cannot be accepted and accordingly the same is dismissed. The petition filed by the respondent-wife regarding the question of maintainability, is also closed.